What ever happened to the rain?

As a brief follow-up to my posting on Colorado water rights (This land is my land, but the rain isn't...) check out this article at Popular Mechanics.

The Clean Water Restoration Act

There is a fight brewing – big surprise – over the Clean Water Restoration Act of 2009 (“CWRA”)(S.787). The stated purpose of the CWRA is to “restore” the authority of the EPA under the Clean Water Act and roll back the clock to the state of the law prior to the U.S. Supreme Court’s rulings in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”) and Rapanos v. United States, 547 U.S. 715 (2006).

According to U.S. Representative James Oberstar (D-MN) and Senator Russ Feingold (D-WI), as well as environmentalists who support the bill, the CWRA is needed to restore the original authority of the EPA under the Clean Water Act. Others disagree and allege that the CWRA vastly expands the scope of the EPA’s authority to waters never contemplated under the Clean Water Act.

The crux of the dispute is that the Clean Water Act of 1972 (as amended) does not clearly define what waters it applies to. The Act refers to “navigable waters” (33 U.S.C. §§1311(a) and 1342(a)), but then defines that term as “the waters of the United States, including the territorial seas.” (§1362(7)) Prior to the Supreme Court’s decisions in SWANCC and Rapanos, the Act was believed by some to apply broadly to non-navigable (in the traditional sense of the word) bodies of water, including intrastate wetlands. SWANCC and Rapanos changed all that. Under those decisions, the extent of the Clean Water Act was read to include only “relatively permanent, standing or continuously flowing bodies of water…” Rapanos at 739. Further, the Court read the Act to cover only those wetlands with a continuous surface connection to an otherwise covered “water”. Id. at 742. This had the effect of excluding numerous intrastate “waters” and wetlands that had previously been deemed to fall within the scope of the Act.

So – here comes the CWRA. This legislation will either “restore” or “dramatically expand” federal jurisdiction under the Act – depending on whether you support or oppose it. The CWRA would extend the Act to include, “all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing...” (S. 787, §4(3)). In comparing this definition with the one currently found in the Act, I think I have to agree that this expands - not restores - federal jurisdiction under the Act. Environmentalists may not be happy with the Supreme Court’s reading of the Act in Rapanos, but it is reasonable. Those who dislike the decision should vent their ire not at the Supreme Court, but at the legislators who failed to adequately describe what the Act was supposed to cover. The more important question however is not whether the CWRA is restoration or expansion, but whether or not it is a good idea of itself.

As a general proposition, I am often leery of attempts to expand federal regulatory authority for the simple reason that there are often much more efficient means of addressing our problems on a local level. Despite this, there are numerous areas where federal regulation is not only beneficial, but indispensable. One need only look at where the deregulation of the financial industry has gotten us to see a dramatic example of the need for regulation. As to the CWRA, I am mindful of the expansion of federal jurisdiction it entails, but that is outweighed in my mind by the simple fact that water – like the financial industry – is all interconnected. It is a fundamentally dynamic resource that is constantly cycling through our environment – much like air. As such, I have difficulty truly imagining water that is solely “intrastate” or otherwise completely isolated from all other water sources or supplies. To me, that fact weighs heavily in favor of comprehensive regulatory controls that provide consistent treatment of water nationwide.

Pharmaceutical Discharges

There is a new AP article on PPCP contamination (you can see my last posting on that here). This time the focus is on pharmaceutical manufacturers. The article states:

Researchers have found that even extremely diluted concentrations of drugs harm fish, frogs and other aquatic species. Also, researchers report that human cells fail to grow normally in the laboratory when exposed to trace concentrations of certain drugs. Some scientists say they are increasingly concerned that the consumption of combinations of many drugs, even in small amounts, could harm humans over decades.

With the results of studies regarding the impact of PPCP's on our environment expected this year, it seems likely that this issue will gain additional press coverage and traction with the public. I believe that it is important not just for the EPA and FDA, but also those in the water industry to get out ahead of this issue. As the tone of the AP article suggests, statements like this one - "Scientists, doctors and the EPA say there are no confirmed human risks associated with consuming minute concentrations of drugs. " - simply don't cut it.

International Boundaries and Climate Change

There is an interesting posting over at the IWLP Blog discussing the possible effects of climate change on territorial claims and conflicts between nations.

Summarized briefly, the borders of many nations are defined by the course of rivers and lakes. While there is existing and well settled international law which deals with the effect of various changes to these water features, gradual man made changes - such as climate change - fall through the cracks of existing legal precedent.

The problem also extends to our oceans. We normally think of rising sea levels as exactly that - a vertical problem. But rising sea levels will also change the course of coast lines around the world, and with them the maritime territorial claims of nations. This potentially impacts fishing rights (already hotly contested in many parts of the world) and the exploration of submarine resources.

We normally think of water related conflict being one of supply. But, here is an example of how climate change's effect on water could literally rewrite the borders of nations all over the world.

It's Groundwater not Ground Water

There's a new post over at Waterwired. It's the April 2009 H2OSU Newsletter and its worth your perusal. I particularly like the article on the USGS' apparently highly controversial decision that from now on ground water will be referred to as a single word groundwater.

This land is my land, but the rain isn’t…

In Colorado (among other western states) you do not own the water that falls out of the sky onto your own property. An interesting article in the Wall Street Journal discusses Colorado’s water law, which some lawmakers want to change, that divvies up water even before it hits the ground.

Now, this is not a new issue out west, though it sounds more than a little strange to someone (like myself) in the northeast. I was struck however by the statement in the article that water is distributed “[U]nder a seniority system based on first-come first-serve claims staked out as far back as the 1850s.” Apparently this developed in part as an outgrowth of customs developed by early prospectors (see here for a brief discussion of the appropriation system).

But, one has to question the rationality of dividing water rights according to claims dating back more than a century. Further, the idea of “first come, first serve” may be rational in certain contexts, like a gold rush, but I have serious doubts that modern water rights are one of them.

Waterwired

Here's a shout out to Michael Compana who runs Waterwired, another great resource on water issues. I've added the link below, so please go check the site out.